Ordinance effect

In the clamour following the Delhi gangrape, it was clear that rape laws had to be revisited. The government appointed a three-member committee headed by Justice Verma to suggest changes to various laws on crimes against women. To put in effect some of the committee's recommendations, the government issued an ordinance last week. While the ordinance addresses most of the issues raised by the Verma committee, certain suggestions, like the criminalisation of marital rape, were not followed. Some of the ordinance's key provisions on sexual assault are discussed below.

First, the ordinance replaces the term rape with "sexual assault". Sexual assault is gender neutral, that is, it protects both men and women and may be perpetrated by men or women. While rape, under the IPC, implies penile penetration of the vagina, sexual assault, under the ordinance, has a broader definition. It implies the penetration of any orifice of the body by the penis or any other object. The ordinance therefore removes the requirement for proof of penetration. It also increases the minimum punishment for gangrape from 10 years to 20 years.

Second, prior to the ordinance, the IPC criminalised offences against the modesty of women. In addition to making them gender neutral, the ordinance increases the punishment for these offences. This is achieved by criminalising non-penetrative acts as "sexual harassment". These acts include physical contact, demands for sexual favours and forcibly showing pornography. They are punishable with up to five years' imprisonment. It is interesting to note that while the ordinance treats sexual harassment as gender neutral, sexual harassment at the workplace bill, pending in the Rajya Sabha, protects only women.

Third, rape resulting in death of the victim is tried as murder along with rape and has been considered fit for the death penalty in various cases. There is no specific provision under the IPC for rape that causes a persistent vegetative state. Such cases were punishable with imprisonment for a term prescribed for the offence of rape. The ordinance accepted the Verma committee's suggestion to punish such offenders with imprisonment for 20 years up to imprisonment for the rest of the offender's natural life. However, the ordinance also provides for death penalty for the offence.

Fourth, various other acts, such as stalking, voyeurism, forcibly disrobing a woman, were not penalised under the IPC. The ordinance addresses this issue by specifically penalising these offences. For instance, stalking and voyeurism are punishable with imprisonment for three to seven years.

Fifth, in order to ensure that complaints about sexual offences are recorded, the ordinance specifically penalises public servants who fail to record information in these cases with up to one year of imprisonment.

While the ordinance resolves many issues raised by the Verma committee, the National Commission for Women (NCW) and some law commissions, some issues remain to be addressed. These include the requirement to secure compensation for victims of sexual assault to meet their medical and rehabilitation costs and the criminalisation of marital rape.

Under the IPC, the rape of a woman by her husband was not an offence, unless the woman was under 15 years or she was judicially separated from the husband. Even in such cases, the punishment for the husband was lower than the punishment for rape. Recently, the Justice Verma committee, and earlier, the NCW, had recommended deleting the exception to marital rape. The ordinance has not accepted this recommendation and continues to criminalise marital rape only when the wife is under 15 years or is judicially separated. This is at variance with the age of consent prescribed under the Protection of Children from Sexual Offences Act, 2012 (PCSO Act). Under this, the age of consent for sexual acts is 18 years. It does not create an exception in favour of sexual acts between a husband and a wife.

In the upcoming budget session, the ordinance will be tabled as a bill so that it may be passed as a law. The bill may then follow the legislative process, which includes examination by the relevant standing committee. Hopefully, the bill will be given due consideration in its passage through Parliament.